TRENTON – Attorney General Gurbir S. Grewal today joined a coalition of 23 Attorneys General in suing the U.S. Department of Health and Human Services (HHS) over a new rule that rolls back federal protections against discrimination in health care for women, LGBTQ individuals, persons with limited English proficiency, and others.
Filed today in U.S. District Court in New York, the lawsuit seeks to set aside the rule, which HHS finalized in June. The rule purports to implement Section 1557 of the Affordable Care Act—the first federal civil rights law to comprehensively prohibit discrimination in health care—which prohibits discrimination against individuals on the basis of race, color, national origin, sex, disability, or age. But, instead of implementing Section 1557, the rule strips several protected groups of important rights.
The Complaint asserts that the new rule—finalized during the global COVID-19 pandemic—“will impose unjustifiable barriers to health care on vulnerable populations at a time when access to care is as crucial as ever.”
“There’s never a good time for discrimination in health care, but the federal government’s decision to eliminate anti-discrimination protections during a pandemic means New Jersey residents may immediately face increased health risks,” said Attorney General Grewal. “The burdens of this rule will fall most heavily on already-underserved populations, who will now find it even harder to obtain routine medical treatment as well as lifesaving interventions. With our challenge to this rule, we are standing up for our residents against the current Administration’s latest effort to dismantle the protections of the Affordable Care Act.”
The rule published by HHS in June 2020 eliminates anti-discrimination protections that HHS established in a rule adopted in 2016.
At that time, HHS recognized that discrimination in the health care context “can often lead to poor and inadequate health care or health insurance or other coverage for individuals and exacerbate existing health disparities in underserved communities.” Individuals facing discrimination may avoid seeking care, resulting in adverse public health outcomes and higher medical costs associated with delayed or denied care.
In particular, HHS in 2016 found substantial evidence of ongoing health care discrimination—and the related harms to individuals and the public—experienced by transgender people, women, individuals with limited English proficiency, and people with disabilities, and detailed the pervasive, discriminatory barriers to adequate health care faced by these groups.
To address these problems and fulfill the Affordable Care Act’s antidiscrimination mandate, HHS’s 2016 rule detailed the obligations of health care providers and insurers with respect to transgender people, individuals seeking reproductive health care, individuals with limited English proficiency, and people with disabilities.
Key provisions of the 2016 rule clarified that the Affordable Care Act’s antidiscrimination mandate broadly applies to all health providers and insurers that receive federal financial assistance; clarified that the statute’s prohibition on discrimination on the basis of sex included discrimination based on gender identity, sex stereotypes, and pregnancy-related conditions; detailed covered entities’ obligations to transgender individuals; established detailed language access requirements to ensure nondiscriminatory access to health services for individuals with limited English proficiency; and established a uniform enforcement scheme for all forms of discrimination prohibited by the statute.
The new rule finalizes a proposal from last year to eliminate or curtail these protections. Under HHS’s new rule, it will become easier for health care providers to deny care to transgender individuals and those seeking pregnancy-related treatment, and for insurance companies to deny them coverage. Persons with little or no English-speaking ability will no longer be entitled to language assistance services, as contemplated by the 2016 rule. And persons with disabilities will be harmed because certain entities will be exempted under the rule from any obligation to provide auxiliary aids and services.
Among other things, the new rule dispenses with part of the 2016 rule that defined discrimination “on the basis of sex” to include discrimination based on gender identity, sex stereotypes, and pregnancy related conditions. The new rule removes those protections in direct conflict with the Supreme Court’s recent decision in Bostock v. Clayton County, which held that discrimination based on sexual orientation and transgender status are forms of sex discrimination prohibited by federal civil rights law.
Attorney General Grewal was among the Attorneys General who in August 2019 submitted comments opposing the changes made by the new rule, and in April 2020, called on HHS to withdraw the proposal because of the harms that it would cause during the COVID-19 pandemic.
The complaint filed today argues that HHS has unlawfully ignored the many harms the new rule will impose on vulnerable populations. It further contends that HHS has failed to justify why the new rule abandons prior federal policy which, among other things, explicitly prohibited discrimination in health care and required health entities to provide meaningful language assistance services to individuals with limited English proficiency including notifying them of their rights to translation and interpretation services.
Along with the State of New Jersey, the following jurisdictions are plaintiffs in today’s lawsuit: California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Wisconsin. California Attorney General Xavier Becerra, Massachusetts Attorney General Maura Healey, and New York Attorney General Letitia James are leading the lawsuit.
Deputy Attorneys General Marie Soueid, John Passante, and Melissa Medoway and Assistant Attorney General Mayur P. Saxena are representing the State of New Jersey in the matter.